Now that Canada’s CFPOA is actually being enforced, ambiguities in the wording are leading to disagreements over interpretation. What does this mean for litigators and organizations subject to the Act?

• Understanding the nature and implications of the Act’s weaknesses, and the proposed amendments to address them
• What does the language “real and substantial link to Canada” mean, and is there more than one interpretation?
  • Does financing count?
  • Do you need direct instruction?
  • Will the courts apply the interpretation employed in competition law?
• Considerations when applying the penalty provisions

The RCMP has added 15 investigators dedicated to enforcing the CFPOA, and has initiated numerous investigations. In this session, Inspector Gord Drayton will update you on enforcement efforts.

• How the RCMP structures an investigation and applies investigative techniques
• When may individuals be the subject of charges/convictions?
  • The charge against Nazir Karigar
• How Canada is cooperating with enforcement bodies in other countries
• Where enforcement is going following the conviction of Niko Resources
  • How many active investigations are under way?
  • Blackfire Exploration
  • SNC-Lavalin

The extent to which Canadian multinational corporations are subject to the American Foreign Corrupt Practices Act (FCPA) and the UK’s new Bribery Act

• How are the three pieces of legislation similar and different?
  • Key features of the FCPA Who is a foreign official?
  • Key features of the UK Bribery Act, including the Failure to Prevent Bribery offence
    • Who administers/enforces them?
  • Application
  • Guidelines for prosecutors in the UK
  • Enforcement provisions
  • Types of behaviour captured
  • Scope of review and production required
  • Defences
  • Types of penalties available
  • Implications of declination letters
• Application to transactions within the private sector
• Reconciling the FCPA’s prescriptive approach to compliance with the UK principles-based approach: what is the best approach for Canadian companies?
• What other European regulations should Canadian companies be aware of?
• Initial charges under Australian legislation
• Do foreign officials have jurisdiction over individuals on Canadian soil?
  • How the US defines a nexus
• Can the Canadian Act be superseded by foreign legislation?
• Can a conviction under laws in one country constitute a predicate offence for a money-laundering or RICO offence in another?
• How and when does double jeopardy apply?
• Does compliance in one jurisdiction ensure compliance in others?
  • If you are FCPA compliant, will that satisfy Canadian requirements?
• How are government agencies working together to regulate international corrupt practices?
• Coordination among branches of the US DOJ
  • How cooperating witnesses and companies in other investigative areas, such as competition, may face questions/disclosure on the bribery front
• What industries are being targeted for enforcement?
• Canada’s new Freezing Assets of Corrupt Regimes Act

In this session, the investigator and prosecutor from the Niko Resources case talk about lessons to be learned from Canada’s first major CFPOA investigation, conviction and $9.5 million fine.

• How authorities were tipped off to the infractions
• Issues about gifts and hospitality
  • Where bona fide hospitality can get off the rails
• Resources required for the investigation
  • Why it was so complicated
  • Numbers of people assigned to the case
  • Collaboration with other agencies
  • How long the MLAT process takes
• Precharge negotiations with defence counsel
  • Lessons for engagement with the authorities
  • Pre-charge disclosure
• How the fi ne was calculated
• Evidentiary issues
  • Where was the evidence gathered and under what legislation?
  • Getting banking and other records from Bangladesh
  • Admissibility

• How to identify red flags when selecting representatives
• Essential contractual provisions
• Getting your agent on board with your compliance program
• Effective monitoring of representatives and early warning systems
• Identifying payroll fraud/phantom employees
• Corporate liability and when an agent goes rogue: Is there a difference?
• How to deal with the recommendations of foreign government officials

• What are facilitation payments?
• Examples
• How are they treated by the various regimes?
• Avoiding “touts”

• The pros and cons of voluntary disclosure of infractions
• What do you need to tell your auditors?
  • What might your auditors require you to do?
  • What are your auditors required to do with that information?
  • What constitutes a material finding? A material control weakness in financials?
  • Does discovery of dishonesty at senior management level call into question reliance on information provided to previous audits?
  • How does the conversation with auditors relate to the conversation with regulators/law enforcement?
• The mechanics of making a voluntary disclosure
  • To whom do you make the disclosure?
  • What is the protocol?
• How your relationship with a prosecutor may affect your decision
• Do you have to disclose to more than one jurisdiction?
• Dodd-Frank implications
• Examples from Canada and the US